Waiver of Prosecution in Norwegian Criminal Law: Principles, Conditions, and Practice

Conditional dismissal of charges is an important instrument in Norwegian criminal law that provides the prosecuting authority with the capability to refrain from pursuing a criminal act, even when there is evidence against a specific perpetrator. This institute is based on the principle of expediency, which grants the prosecuting authority discretionary powers to assess whether prosecution is appropriate in each individual case.

The Principle of Legality and Expediency

In criminal justice, two fundamental principles stand in contrast:

1. The Principle of Legality implies that the prosecuting authority is obliged to prosecute all criminal acts when the evidence is sufficient.

2. The Principle of Expediency provides the prosecuting authority with the opportunity to refrain from prosecuting after balancing considerations for and against it, also known as the relative obligation to prosecute.

Older laws typically relied on the principle of legality, which best corresponds to the notion of punishment as necessary retaliation for the unlawful act. However, the Criminal Procedure Act of 1887 introduced wide access to refrain from prosecution, a provision maintained in the Criminal Procedure Act of 1981.

Criticism against the principle of expediency has been that it might lead to inconsistent decisions influenced by personal or political considerations, or it might weaken trust in the judicial system. Experience shows, however, that these concerns are exaggerated, especially when the prosecuting authority is ensured independence from political authorities. Another objection is that extensive use of the principle of expediency might undermine the general preventive effect of the penal code.

Conditions for Conditional Dismissal of Charges

The Principle of Expediency in Section 69 of the Criminal Procedure Act

The main rule regarding the access to conditional dismissal of charges is found in the Criminal Procedure Act, Section 69, first paragraph:

"Even if guilt is considered proven, prosecution may be refrained from provided that such special circumstances exist where the prosecuting authority, through an overall assessment, finds that there are overriding reasons for not prosecuting the act."

The prosecuting authority must make a weighing of considerations arguing for and against prosecution. The law does not provide an exhaustive list of relevant considerations, but examples may include:

• Exceptionally long time since the act was committed

• Exceptionally mitigating circumstances

• The age, whether young or old, of the perpetrator

• The particular mental state of the perpetrator

• The interests of the victim

• The interests of the perpetrator's relatives

• The relationship to a foreign power

• The costs of prosecution

The wording of the law regarding "special circumstances" emphasizes that the usual course is to bring charges.

Conditional Conditional Dismissal of Charges

Originally, the dismissal of charges was always unconditional. With the Penal Code of 1902, the option was introduced to impose a crime-free conduct during a probationary period as a condition for the dismissal of charges. Subsequent legislative changes have expanded the conditions that can be imposed, such that most special conditions that can be set with a conditional sentence can also be imposed with the dismissal of charges.

Examples of conditions that can be imposed:

• Compensation to the victim

• Requirement to seek employment

• Abstinence from alcohol

• Stay at a rehabilitation institution

• Reporting duty to the police

The prosecuting authority, however, is not permitted to impose conditions other than those explicitly mentioned in law. In practice, no other special conditions are usually set than payment of compensation.

The probationary period for a conditional dismissal of charges is normally two years. If the conditions are not met, the prosecuting authority can reopen the case. If the violation involves the perpetrator committing a new criminal act, the old and the new act can be judged together.

Considerations of Judicial Economy

Another type of dismissal of charges is regulated in Section 70 of the Criminal Procedure Act:

"Prosecution may be refrained from when the rules for sentencing in cases involving multiple crimes or offences lead to no or only an insignificant penalty being applicable."

The rationale here is judicial economic, not criminal policy-oriented. It is unnecessary to include less serious matters, which will not play any practical role in sentencing, but would mean additional work for the court, prosecuting authority, and witnesses.

Proof of the Accused's Guilt Required

A fundamental condition for the dismissal of charges is that there is evidence of the accused's guilt. If insufficient evidence exists, the accused is entitled to have the case dismissed due to the state of the evidence. A dismissal of charges therefore implies the prosecuting authority's statement that it has found the criminal circumstances substantiated.

In general, dismissals of charges are not granted without a confession, but this is not an absolute requirement. If the accused claims innocence, he can, under Section 71 of the Criminal Procedure Act, demand that the prosecuting authority take the case to court if it does not want to withdraw the charge. However, this right does not apply to dismissals of charges under Section 70 (considerations of judicial economy).

Conditional Dismissal of Charges in Practice

The law sets no limitations on the nature of legal violations that can be settled by dismissal of charges. In practice, however, it is rarely that charges are dismissed for serious crimes. Most dismissals of charges pertain to minor property offenses, vandalism, and less serious sexual offenses.

In certain cases, the dismissal of charges can act as a safety valve for crimes that are objectively serious, but where special circumstances prevail. There are examples of dismissals of charges in murder cases with entirely specific circumstances, such as mercy killings.

The authority to grant dismissals of charges generally lies with the same instance within the prosecuting authority that can bring charges:

• In felony cases, this is generally the District Attorney.

• The Chief of Police has prosecutorial authority in cases where the maximum sentence does not exceed imprisonment of one year, as well as in certain practically important criminal provisions with higher maximum penalties.

• In misdemeanor cases, the decision can always be made by the police.

• In some cases, the dismissal of charges must be granted by the King in Council following a recommendation from the Director of Public Prosecutions.

The Relationship with Child Welfare Services

For offenders between the ages of 15 and 18, both criminal prosecution and measures under the Child Welfare Act may be considered. The previously existing system of "dismissal of charges under the Child Welfare Act" and later "transfer to the Child Welfare Board" has now been abolished.

The current system is based on collaboration between child welfare services and the prosecuting authority through mutual information sharing. When an investigation is initiated against children under 18 years in cases that are not trivial, the police are to immediately notify the child welfare service. When requested by the child welfare service, it must also be given the opportunity to express its opinion before the decision on charges is made.

The Evolution of the Use of Dismissal of Charges

The dismissal of charges was previously granted in a significant number of cases. In the 1960s and 1970s, dismissals constituted nearly 30 percent of the total number of reactions to crimes. Subsequently, the use has been significantly reduced. In 2002, the reaction statistics showed a total of 159 dismissals of charges, of which 118 were for crimes.

Several factors can explain this development:

• Expanded access to impose fines in many types of cases

• Cases transferred to mediation tribunals are no longer concluded with dismissal of charges

• Changed registration routines

Conclusion

Conditional dismissal of charges is an important tool in Norwegian criminal law that provides the prosecuting authority with flexibility to resolve cases in a manner that accommodates both the interests of society and the accused. Through conditional dismissal of charges, conditions can also be set that contribute to rehabilitation and restitution. While the use of dismissals has decreased, the institute still represents an important safety valve in the criminal justice system, especially in cases where formal prosecution would appear excessively harsh.